Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 122

P893/15

OPINION OF LADY WISE

In the petition of

SS

Petitioner;

for

Judicial Review of a decision of the Secretary of State to refuse to recognise the petitioner has made a fresh human rights claim. 

Petitioner:  Caskie;  Drummond Miller LLP

Respondent:  Komorowski;  The Office of the Advocate General

17 August 2016

Introduction and background
[1]        The petitioner is a 23 year old citizen of India.  He arrived in the United Kingdom on or about 25 January 2012 and entered with a valid student visa.  He attended South Lanarkshire College under some form of scholarship programme.  He met his now wife, KD, in about February 2013.  On 23 September 2013 South Lanarkshire College withdrew the petitioner’s scholarship due to non attendance and poor progression.  The petitioner was advised of that decision.  He was working in breach of the conditions of his visa.  He married KD on 21 May 2014.  On 7 July 2014 the petitioner submitted a human rights article 8 application to the respondent based on his relationship and marriage with KD.  The application was refused and the appellant appealed against that refusal.  On 25 September 2014 the immigration judge who heard the appeal issued a determination and reasons in support of his decision to dismiss the petitioner’s appeal.  Applications to appeal against the immigration judge’s decision were refused and the petitioner became appeal rights exhausted on 31 March 2015.  On 29 July 2015 he was detained and removal directions were set for 3 August 2015.  On 12 August 2015 through new agents the petitioner made further submissions to the respondent and asked that they be considered as a fresh human rights claim.  By a decision letter of 17 August 2015 the respondent rejected the petitioner’s further submissions.  This petition seeks to review that decision. 

The applicable law
[2]        There was no dispute at the hearing before me in relation to the general principles that apply to cases of this sort.  Rule 353 of the Immigration Rules insofar as material provides that: 

“When a human rights or asylum claim has been refused… and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim.  The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered.  The submissions will only be significantly different if the content: 

(i)   had not already been considered; 

(ii)   taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection…”

[3]        The approach to applications under rule 353 is now well settled.  If the Secretary of State accepts the submissions the claim will be granted.  If the submissions are rejected, the Secretary of State must then consider whether the new material nonetheless is significantly different from the previous material and, taken with that previous material creates a realistic prospect of success.  The threshold is a low one.  So far as the correct approach to be adopted by the court in judicial review of a decision by the respondent to refuse such a fresh claim a convenient summary is provided by Lord Bannatyne in ABC v Secretary of State for the Home Department [2013] CSOH 32 in the following terms: 

“1. The test to be applied by the court in a judicial review of a refusal to treat further representations as constituting a fresh claim is the Wednesbury test (see:  WM (DRC) v The Secretary of State for the Home Department [2006] EWCA Civ 1495 at paragraph 9 and O v The Secretary of State for the Home Department [2010] CSIH 16 at paragraph 22). 

2. The decision remains that of the Secretary of State and the court may not substitute its own decision (see: Dangol v Secretary of State for the Home Department [2011] CSIH 20 at paragraph 7). 

3. The court must ask itself two questions: 

1. Has the Secretary of State asked himself the correct question? – that is, whether there is a realistic chance that an immigration judge, applying the rule of anxious scrutiny, will accept that the petitioner will be exposed to a real risk of persecution on return.

2. In addressing that question has the Secretary of State satisfied the requirement of anxious scrutiny? (see:  WM (DRC) at paragraph 11, O at paragraph 22 and Dangol at paragraph 7). 

Secondly, parties were agreed as to the approach to the issue of anxious scrutiny: 

1. The Secretary of State’s decision will be irrational if it is not taken on the basis of anxious scrutiny (see:  Dangol at paragraph 7). 

2. Anxious scrutiny means that the decision letter must demonstrate that no material factor that could conceivably be regarded as favourable to the petitioner has been left out of account in the review of the evidence (see:  Dangol at paragraph 9). 

3. But anxious scrutiny does not mean the Secretary of State must show undue credulity to the petitioner’s account (see:  Dangol at paragraph 9).”

[4]        In this case the correct approach in cases where the applicant’s spouse is a UK citizen and the relatively new provisions of section 117B of the Nationality, Immigration and Asylum Act 2002, brought into force on 28 July 2014, are also relevant but those issues were contentious and so I discuss them below in considering the arguments made. 

Submissions for the petitioner
[5]        Mr Caskie for the petitioner first addressed the issue of whether the respondent’s consideration of the petitioner’s human rights claim outwith the Immigration Rules was adequate.  While it was accepted that the petitioner did not qualify inside the rules it was submitted that there was, to some extent, an overlap between applications outside the rules and inside the rules in the sense that some who would not qualify outside the rules can qualify inside them and vice versa.  The central issue in this case was whether the decision to refuse the petitioner’s general article 8 “outside the rules” claim was proportionate.  In considering proportionality it was accepted that the respondent must now have regard to section 117B of the 2002 Act, as amended in 2014.  Section 117B (4) and (5) are in the following terms: 

“(4) Little weight should be given to—

(a)a private life, or

(b)a relationship formed with a qualifying partner,

that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.”

[6]        Mr Caskie submitted that the petitioner’s position was that he was in the United Kingdom lawfully when his relationship with KD started.  The respondent had, however, relied on section 117B (5) on the basis that such leave to remain as the petitioner had at the time he entered into the relationship with KD was precarious.  It was submitted that the contrast between subsection (4) and (5) should be noted.  The petitioner’s wife was a qualified partner for the purposes of (4).  If parliament had intended subsection (5) to apply to situations where someone was married to a British citizen it could have said so.  Further, while subsection (5) applied only to private life subsection (4) applied to both private life and family life.  The principal argument advanced on this issue on behalf of the petitioner was that the word “established” in section 117B (4) and (5) must, if given its ordinary meaning, apply to the initial stage of forming a relationship.  It was accepted that the recent decision of Mr Justice McCloskey, President of the Upper Tribunal (Immigration and Asylum Chamber), in the case of Deelah & others v SSHD [2015] UKUT 00515, contradicted the petitioner’s argument on this point.  However, it was submitted that the decision in Deelah was wrong.  In that case, Mr Justice McCloskey firmly rejected the view that the word “established” applied only to the commencement of a person’s private life or the commencement of a relationship with a qualifying partner.  He decided that the provisions of section 117B (4) and (5) must also apply to the continuation or development of such relationships.  Mr Caskie pointed out that in the present case the decision complained of was made one year after the immigration judge’s decision.  The parties had married in May 2014, the immigration judge had made the adverse decision in September 2014 and the Secretary of State had made her decision on the fresh submissions in August 2015.  It was illogical and wrong to ignore the period of family life after the petitioner’s residence here became unlawful.  Unlike an assessment under the Immigration Rules, an article 8 assessment outside the rules could never be a “tick box” exercise. 

[7]        It was instructive to look at Immigration Rule EX.1(b) which the petitioner was said not to meet.  That rule provides that leave can be granted where a party has a genuine and subsisting relationship with a partner who is in the United Kingdom and is a British citizen and there are insurmountable obstacles to family life with that partner outside the UK.  Where one is outside the rules at an issue of proportionality under article 8(2) the question of what will happen to the applicant’s partner also requires to be evaluated.  In VW (Uganda) v SSHD [2009] EWCA Civ 5 the Court of Appeal (at paragraph 42) expressed the view that one could not expect a decision maker to form a confident or even probabilistic view of what will follow a proposed removal in terms of family breakup or continuation as the evidence may make that impossible.  It is the hardship of the dilemma facing the partner or couple itself which has to be recognised and evaluated.  In Mr Caskie’s submission, if the petitioner’s wife was to say, entirely plausibly, to the hypothetical favourably disposed immigration judge that she simply would not go to India then that would amount to an insurmountable obstacle to their family life continuing outside the United Kingdom.  The argument became stronger where a reason could be shown for a British citizen deciding not to leave.  In this case KD is a student with another year of studies before her honours degree is completed.  Reference was made to the Inner House decision in Mirza v SSHD [2015] CSIH 28.  In that case, Lord Eassie, delivering the opinion of the court opined that, in an application for leave to remain in or enter the United Kingdom as a spouse of someone settled in the United Kingdom, consideration must be given to the rights, including article 8 rights, of that other spouse.  The issue of the human rights of the married couple must be taken into account.  It had to be borne in mind that as a British citizen an applicant’s wife could not be required to leave the United Kingdom.  While that could not in itself automatically lead to the granting of her husband’s application it would weigh heavily in the assessment of the proportionality of the interference with the couple’s human right to cohabit together as spouses. 

[8]        Mr Caskie returned to the alleged precariousness of the petitioner’s situation when he established his relationship with KD.  In Rodrigues Da Silva v The Netherlands [2006] application number 50435/99 the court had cautioned against indulging in “excessive formalism” by focusing on the illegal nature of someone’s presence in the country involved when family life had been formed and was the issue.  In the present case, the submissions to the proposed new immigration judge would be that there are now circumstances that give rise to insurmountable obstacles of settling as a couple outside the UK such that the petitioner may now fall within the rules, which failing he should be allowed to remain outside the rules on the basis that it would be disproportionate to create a situation that would result in either the separation of the couple or the petitioner’s wife going to a country where she does not speak the language and has very solid ties that she would have to leave.  It could not be said to be necessary in a democratic society to remove this petitioner from the United Kingdom. 

[9]        Mr Caskie then examined the decision under a challenge, the letter number 6/3 of process.  It was accepted that the immigration judge’s decision from 2014 was the starting point and that the findings in fact made by that judge would stand except in very limited circumstances when the matter went before another immigration judge.  However, the conclusions reached on the basic facts can alter.  Mr Caskie accepted that the immigration judge had examined the issue of the petitioner’s wife going to live in India.  He submitted, however, that matters had moved on for the couple since then.  The petitioner’s involvement with his wife had deepened.  Further, his ties with her extended family were now very strong.  The petitioner’s wife is so firmly rooted here in the United Kingdom that the balance tipped in favour of allowing the petitioner to stay.  It was accepted that the immigration judge had found that the petitioner was not forthright with his wife about his circumstances when they first met.  However, a different immigration judge might draw different conclusions from that fact.  On the available chronology of events another immigration judge might conclude that KD was already too deeply and emotionally involved with the petitioner by the time he was arrested and so his previous lack of candour with her became irrelevant.  The previous immigration judge appeared to have failed to distinguish between private life and family life and a new immigration judge might take a different view on the weight to be attached to the petitioner’s family life with KD.  In any event, notwithstanding the terms of section 117B the precariousness of the petitioner’s situation was still only one factor in the balancing exercise.  The previous immigration judge did not have information about the wider context and the developing deep relationship with KD’s family now contained in the further submissions. 

[10]      In support of an argument that the material provided to the respondent in August 2015 was significantly different from that previously provided Mr Caskie pointed to various parts of the supporting documents.  In essence, the statements of KD and her mother spoke of a deep and meaningful relationship between the petitioner and KD’s family.  The petitioner was an integral part of KD’s extended family.  The impact of his departure would not just be on KD but on many others including children of the extended family.  While the petitioner and KD had no children the children within the extended family could be regarded as affected children within the meaning of section 55(1) of the Borders, Citizenship and Immigration Act 2009. 

[11]      On the approach to be taken by the proposed second immigration judge reference was made to Devaseelan v SSHD [2002] UKIAT 000702 at paragraphs 39 – 42.  It was accepted that someone in the petitioner’s position who elaborates on available facts in an effort to obtain a more favourable outcome would be properly regarded with suspicion.  However, the situation was different here as there was ample material to show that the relationship between the petitioner and his wife had deepened and there was independent corroboration not previously available of their family life with each other and with extended family. 

[12]      In anticipation of arguments that would be put forward for the respondent Mr Caskie also referred to Khan v SSHD [2016] CSIH 13.  In that recent decision of the First Division of the Inner House the Lord President had commented on the decision in Mirza and other relevant authorities.  It was accepted that the Inner House in Khan had concluded that the establishment of family life in the host country did not, per se, lead to any obligation on the host state to allow someone in the petitioner’s position to settle.  The ultimate proportionality assessment remained one of considering all the circumstances.  The possibility of separation of a couple was one of the fact that the decision maker would always have to decide, in a case where the relationship had been established against a background of a precarious immigration status and the argument was whether it was proportionate to require a British citizen to make a choice of remaining here or leaving with her spouse. 

[13]      Mr Caskie also argued that in the decision letter of 17 August 2015 the respondent had failed to give sufficient reasons for her decision.  Paragraph 15 of the letter simply stated that the petitioner had produced no new material that was sufficient to bring the claim within the rules.  There was no discussion of the evidence that had been submitted and nothing to say what exactly the respondent had mad of it.  There was no recognition that KD has rights and benefits accruing to her because of her British citizenship that she would effectively be deprived of if the petitioner is forced to leave.  KD was “invisible” in the respondent’s decision.  There is simply a reiteration that in deciding to go ahead and get married KD had effectively made a bad decision.  Even if that was correct the respondent was obliged to look at the position of the couple as at August 2015.  There is no proper balancing exercise in the letter and the reader is left not knowing why exactly the submissions were rejected.  Mr Caskie submitted that looking at all the evidence there was more than a fanciful prospect that a fresh immigration judge would decide in favour of the petitioner in light of the material now provided.  He invited me to sustain his plea in law and reduce the respondent’s decision of 17 August 2015. 

Submissions for the respondent
[14]      Mr Komorowski, in inviting me to repel the petitioner’s plea in law, sustain the respondent’s plea in law and refuse the petition, submitted that the important questions of whether the respondent had erred in law, and if, so whether that error was material, both had to be answered in the negative in this case.  The background was that the petitioner’s human rights arguments had been analysed and refused by a specialist tribunal less than 11 months before the respondent’s decision. 

[15]      Eleven matters were raised for discussion on behalf of the respondent.  First, was the relevance of a spouse’s opposition to leaving the United Kingdom.  The clear and recent guidance of the First Division of the Inner House in Khan rejected the contention that it is somehow illegitimate to consider the likelihood of a UK citizen leaving the United Kingdom to be with her spouse.  It was emphasised in that case that the precariousness of an applicant’s immigration status at the time of establishing the relationship was important and that it would only be where there was something of an exceptional nature that the family life created when that status was precarious would be sufficient to allow someone to remain.  The present state of the law was that there is no rule that an assessment of this nature had to be conducted on the basis that the couple would be separated.  There was no presumption of law that someone in KD’s position would not in fact leave the United Kingdom.  Counsel for the petitioner had been wrong to say that a credible assertion by the petitioner’s spouse that she would not leave the UK was enough to create an insurmountable obstacle.  It was the circumstances that had to be examined.  A spouse who produced evidence that she could not leave the United Kingdom because she was caring for a very ill elderly parent would be in a different situation from someone like KD who simply said that she would not go.  The general point was that the spouse’s opposition was not decisive.  One would expect there to be consistency between cases outside the Immigration Rules and inside the Immigration Rules in relation to the issue of spouse’s opposition.  The dicta in VW (Uganda) v SSHD, at paragraph 42, chimed well with the opinion of the Lord President in Khan.  What matters is not so much what the choice of the spouse would be but the nature of the dilemma itself.  The corollary of the argument was that a spouse saying that she would go with her husband would not be enough of itself to reject her husband’s claim.  It all depended on the nature of the dilemma posed. 

[16]      Secondly, it was submitted that the dicta in Mirza was relevant only to an initial human rights claim and not to a fresh claim under rule 353.  In any event, the case of Mirza must now be read in light of the new section 117B which was not in force when that decision was made.  It could also be said that the decision in Mirza was really confined to its own facts and circumstances and did not set out points of general applicability to cases such as the present. 

[17]      Thirdly, while there was no dispute about the test that the respondent had to apply to proposed fresh claims under Immigration Rule 353 it could be said that she was in a sense involved in a predictive task of what a further immigration judge might do.  It was clear from R (AK (Sir Lanka)) v SSHD [2010] 1 WLR 855 that a fanciful prospect of success for the petitioner was not enough. 

[18]      Fourthly, sofar as the test for the court was concerned it was important to bear in mind that this was a judicial review and an error of law must be shown.  The court was not acting as a gate keeper to sift through applications to give the petitioner a chance other than where a material error had been identified. 

[19]      Fifthly, the case of Devaseelan already referred to was important in understanding the approach that the respondent must assume a new hypothetical tribunal would take to the original immigration judge’s findings.  Where, as here, the first immigration judge’s decision had not been successfully appealed the petitioner was free to add new material, not previously considered, but a second immigration judge would not be in a position to consider arguments intended to undermine the first immigration judge’s determination.  In the present case there was no real distinction between the facts that were before the immigration judge who decided the petitioner’s appeal and those before the respondent in the rule 353 claim.  The relatives also had provided information available at the time of the first immigration judge’s decision and could have given the evidence or supporting statements that are now produced. 

[20]      Sixthly, insofar as Mr Caskie had suggested that the new hypothetical immigration judge was not limited to the primary findings in fact given by the first immigration judge, that was wrong.  Both the findings in fact and conclusions drawn by the first immigration judge were there and could not be disturbed absent material changes not present in this case.  In Bhutt v SSHD it was made clear that if the proposed fresh claim was an article 8 claim already determined at an earlier stage there would require to be a material change in circumstances before it was likely that it could proceed.  It was always important that an article 8 claim had been previously adjudicated. 

[21]      The seventh point made for the respondent was that it could not be said that all matters of substance relevant to the petitioner’s article 8 claim had not been dealt with in the first immigration judge’s decision.  There had been evidence before the immigration judge about why KD said she would not go to India.  The issue of her studies and the language barrier had both been raised.  The financial situation in India had been raised.  So the idea that there was an obstacle to the petitioner’s wife returning to India with the petitioner was very much an issue before the first immigration judge.  Whether at that time she showed a strong reluctance rather than direct opposition did not matter.  Whether under the Immigration Rules or outside the Immigration Rules no different decision would have been made by the immigration judge. 

[22]      The eighth matter was whether any errors of law could cause one now to depart from the immigration judge’s findings.  It was clear from Devaseelan that someone in the petitioner’s position could not raise challenges to those findings now.  The immigration judge had referred to the precariousness of the petitioner’s immigration status rather than illegality.  But that was immaterial because while the petitioner and his wife had met when he had leave to remain most of their relationship and marriage had taken place when he had no legal status in this country. 

[23]      The ninth matter was the issue of the interpretation of section 117B of the 2002 Act as interpreted in the case of Deelah.  The new subsections put an obligation on the court to have regard to certain considerations.  The characteristic that linked subsection (4) with subsection (5) was the public interest.  However, there focus was the private choices and decisions made by applicants in the petitioner’s position.  In relation to the issue of when a relationship is established it was implicit, even in the submissions of counsel for the petitioner, that it was accepted that there could be moments of significance in a deepening relationship.  The effect of section 117B was that the portion of the relationship that took place when the petitioner’s presence in this country was illegal is given little weight.  The proportion that took place before his status was illegal is material before the fact finder but it is essentially neutral because provision in section 117B does not apply to it.  Accordingly, an immigration judge will give such weight as he or she sees fit to any period prior to illegality and little weight to any period of a relationship during the period of illegal residence.  A relationship for the purposes of section 117B or family life for that purpose might be established by events such as marriage, having a child and entering into a cohabiting relationship.  Section 117B came into play if the immigration status was precarious or illegal when those events happened.  All of the factors relied on by the petitioner in this case, even if they could be considered to be material, had developed during the period when the petitioner’s presence in the United Kingdom was unlawful.  Accordingly, the respondent would be entitled to give little weight to those considerations.  Properly viewed there was nothing at all of substance that moved matters on from the decision of the first immigration judge. 

[24]      The tenth matter addressed by Mr Komorowski was the terms of the decision letter itself.  It was submitted that this was expressed clearly enough.  References were made to the first immigration judge’s decision.  Paragraph 15 then made clear that the petitioner could not bring himself within the rules as nothing new had been presented relevant to that.  Paragraph 16 was the determination that there was no new fresh claim outside the rules.  It was not necessary for the respondent to rehearse all of the new material which was before her.  There was sufficient reference to the spouse’s position.  If it could be said to be an error to make no specific reference to the extended family that could hardly be a material error.  The reasons given by the respondent were adequate because the reader is left in no doubt that his first submissions are not being accepted because he has not come up with anything new.  Even if the reasoning was regarded as sparse there was no material error here.  Reading the letter as a whole the reasons for the decision are set out albeit briefly.  In the context of a rule 353 case that was acceptable as there was ample authority to the effect that the decision maker did not require to revisit the merits.  The function of the respondent in a rule 353 case had to be borne in mind. 

[25]      The eleventh and final factor relied upon was the case of S v SSHD [2015] CSOH 118, a case that has been reclaimed pending the outcome of an analogous case being determined by the UK Supreme Court.  The key issue in that case was what relevance the Immigration Rules have when conducting an assessment outside the rules.  The first ten matters referred to by the respondent were relevant absent any distinction between an inside the rules and an outside the rules assessment.  In S v SSHD the respondent had made an error of law but it was not material.  In Mirza there was an issue in relation to the petitioner and his wife starting a family.  His wife had miscarried and was near to the stage of being too old to have a baby. 

[26]      Taking all of the matters advanced by the respondent into account it could be seen easily in this case that the respondent having considered the material provided had decided that there was nothing produced that moved matters on in any material way from a decision adverse to the petitioner 11 months previously.  The decision was correct and no error had been identified in her reasoning, far less a material error. 

Discussion
[27]      The question for my determination in this case is whether the respondent, in reaching a decision to reject the petitioner’s further submissions in support of a fresh claim erred in law and if so whether that error was material.  The subject matter of the proposed fresh claim was the petitioner’s deepening relationship with his wife and her extended family.  Accordingly, it is important to examine the correct approach to be taken where someone in the petitioner’s position is married to a British citizen who states that she will not return with him to his home country.  A related matter is the weight, if any, that should be attached to the family life that exists between the petitioner and his wife standing the circumstances in which their relationship developed and they married. 

[28]      On the relevance of a spouse’s opposition to leaving the United Kingdom there is recent authoritative dicta from the Inner House in the case of Khan v SSHD [2016] CSIH 13.  In that case the Lord President (at paragraph 18) opined as follows: 

“There is no reason requiring the decision‑maker to proceed on the basis that a couple will inevitably be separated by removal of the applicant.  In many cases, the evidence may point to the contrary… a tribunal has to decide, in a precarious case, whether it is proportionate to require the British, and hence EU, citizen to make a choice between separating or relocating pending determination of an application to enter as a dependent spouse.  One factor in the tribunal’s assessment must be the practical possibility of relocating.  The assessment will depend upon many factors.  In some, perhaps most, cases the evidence on just what the British citizen will do may be unclear.  Whether that is so or not, the tribunal need not proceed on an assumption that the couple will separate, or indeed that they will not do so.  The ultimate proportionality assessment remains one of considering all the circumstances.” 

[29]      In this case, a proportionality assessment of that sort was conducted by the immigration judge on 25 September 2014.  That assessment took into account that the petitioner was married and that his British wife did not wish to live in India.  The judge took into account, as he was entitled to, that the petitioner had no right to be in the United Kingdom when KD entered into a marriage with him.  Quite properly, he made no determination as to whether she would or would not go with him.  The fact was simply that the nature of the dilemma was that she could decide to stay in the UK where she had lived prior to marrying the petitioner or choose to go with him to India.  By the time the petitioner made further submissions to the respondent in August 2015, it seems to me that the nature of that dilemma had not changed.  The couple have no children and KD’s position in relation to her studies had not changed, other than that she was a further year towards completion of them.  Her right as a British citizen to remain in the UK if she chose to do so was held by her both in 2014 and August 2015.   Accordingly, I cannot see any error in the respondent’s conclusion that the petitioner had failed to raise anything new that had not already been considered such as would be sufficient to advance his claim any further. 

[30]      Turning to the relevance of the nature of the petitioner’s immigration status when he established his relationship with KD, the terms of section 117B of the Nationality, Immigration and Asylum Act 2002 as amended are relevant.  These are relevant to the proportionality exercise required before interference with the petitioner’s right to respect for his private and family life can be justified.  The legislation requires the relevant court or tribunal to have regard to the considerations listed in section 117B in all cases – section 117A(1) and (2).  The effect of subsection (4) and (5) are the same in that, regardless of whether one is dealing with unlawful presence in the UK or precarious immigration status, the effect is to require the decision maker to bear in mind that little weight should be given to private or family life established in those situations.  In this case it was not disputed that by the time the petitioner married KD his presence in the United Kingdom was unlawful.  At earlier stages of their relationship his status was precarious, as he knew he had ceased attending college.  The immigration judge made a finding that the petitioner had given up studying in December 2012 (paragraph 6 of 6/4 of process) and met KD in February 2013 (paragraph 14 of 6/4 of process).  At the hearing before me some doubt was expressed about the accuracy of that finding.  Mr Caskie could not be definitive about the date on which the petitioner had stopped studying however, as his scholarship was withdrawn by the college in September 2013 at least partly due to his non attendance, it seems clear that the relationship between the petitioner and KD developed at a time when he was already working.  He told the immigration judge that he had been working to pay his fees and that he had stopped studying when those fees were requested – paragraph 7 of 6/4 of process.  The petitioner’s statement in support of the proposed fresh claim records that he was working by the beginning of 2013.  Neither the petitioner nor his wife KD mentions in their statements any college attendance on the part of the petitioner after they met.  Accordingly, Mr Caskie’s submission that KD was already “in too deep” emotionally with the petitioner by the time his immigration status became precarious and then unlawful can apply only to the first few months or even weeks of that relationship.  In that context, the interpretation of section 117B(4) and (5) of the 2002 Act must be explored.  Does the term “establish” in those subsections refer only to those initial stages of commencement of the relationship or to the aspects developed thereafter?  I have reached the view that the interpretation suggested by counsel for the respondent on this matter is to be preferred.  As Mr Komorowski rightly pointed out, the subsections apply only where there is a period of precariousness or illegality.  The incipience of a relationship prior to that precariousness or illegality can be afforded such weight as a decision maker sees fit.  What is important for the purposes of the provisions is the direction to attach little weight to aspects of the relationship developed at a time when either immigration status was precarious or presence in the country illegal.  I find myself in complete agreement with the way in which the matter was expressed by Mr Justice McCloskey, President of the UTIAC in Deelah & others v SSHD [2015] UKUT 00515 in rejecting a contention that the expression “established” is to be interpreted as relating only to the formation of a person’s private life or relationship with a qualifying partner and not to the continuation and extension thereof.  McCloskey J reasoned the matter as follows: 

“In choosing the verb ‘establish’ in section 117B(4) and (5), it seems likely that the draftsman has simply drawn from the long standing and repeated judicial espousal of this term … I consider that, in this statutory context, "established" is synonymous with ‘developed’.  The construction of ‘established’ advanced on behalf of the Appellants is, in my view, artificially narrow.  It is further defeated by the long established absurdity principle of statutory construction, familiar to all:  Parliament is presumed not to have intended an absurd effect or consequence.  The suggestion that the ‘little weight’ instruction enshrined in section 117B(4) and (5) applies only to the beginning of a person's private life or the commencement of a relationship formed with a qualifying partner and not the continuance of either results in a construction of these provisions which, in my estimation, is manifestly unsustainable to the point of absurdity.  Why penalise the former and not the latter? No rational explanation or justification for this differential treatment was advanced in argument and I am unable to conceive of any.” 

[31]      In the present case, it would be irrational to apply subsections (4) and (5) to the very early stages of the petitioner’s relationship with KD but not to the development of their relationship or the formation of family life through living together and marriage.  The provisions are specifically stated to be public interest considerations applicable in all cases.  For the purposes of article 8 ECHR claims the immigration status of someone entering into a relationship on which they seek to rely in support of their claim has always been a factor in assessing the weight to be attached through that relationship.  While the previous immigration judge may not have distinguished between private life and family life in this context, there seems to me to be no prospect that a fresh immigration judge looking at the matter now against a background of section 117B would reach a different view.  The deepening of the relationship between the petitioner and KD and in particular their marriage are not, in law, to be given significant weight.  While KD’s position as a UK citizen cannot be ignored, that fact alone does not render the approach taken by the respondent in this case erroneous.  The case of Mirza v SSHD on which counsel for the petitioner placed such reliance, was, as the counsel for the respondent correctly pointed out, decided prior to the amendment of the 2002 Act by the introduction of section 117B.  In any event, it predates the dictum of the Lord President in Khan v SSHD referred to above. 

[32]      On the alleged insufficiency of reasons argument, the context of the decision letter is a rule 353 application involving fresh submissions.  To that extent the respondent’s decision will necessarily differ from the detail contained in a first substantive decision on an article 8 claim.  All of the background is set out in the immigration judge’s decision referred to at paragraph 13 of the decision letter.  There was no requirement on the respondent to narrate in the decision letter a detailed analysis of the various statements provided with the application.  The rationale for the conclusion is clearly conveyed to the reader of the letter, namely that the petitioner has failed to raise anything new that has not already been considered by the respondent or the relevant court or tribunal.  In the context of a rule that requires the new material to be significantly different from the material that has previously been considered, it can hardly be incumbent upon the respondent to refer to aspects of the new material that are simply a repetition of matters already considered.  The developing relationship and marriage of the petitioner and KD had already been examined by the immigration judge.  The extended family members who have now provided information were on the face of it part of the petitioner’s extended family at the time of the immigration judge’s decision.  Their presence in his life is accordingly not a new matter.  A failure by the respondent to refer to them specifically does not, in my opinion, amount to an error of law.  As counsel for the respondent correctly pointed out, even if such a failure could be characterised as an error it would fall well short of a material error of a type that would justify reduction of the decision. 

[33]      In my view, the respondent was also entitled to take into account the timing of the submissions now made and regard them as an attempt to frustrate the removal process.  The petitioner falls into the category referred to in Devaseelan v SSHD 2002 UKIAT 000702 of seeking to add gloss to already available facts in an effort to obtain a more favourable outcome.  A second immigration judge would have to take that into account.  The respondent has properly regarded the claim as an attempt to characterise existing facts as new material. 

[34]      In conclusion, I can discern no error in the respondent’s approach to the material submitted by the petitioner in August 2015, far less any material error.  I will sustain the plea in law for the respondent and refuse the petition, reserving meantime all questions of expenses.